ISSN 2039-2117 (online)
ISSN 2039-9340 (print)
Mediterranean Journal of Social Sciences
MCSER Publishing, Rome-Italy
Vol 5 No 19
August 2014
Indictment and its constituent components
Amantia LEVANAJ
PhD candidate
University of Tirana, Faculty of Law
Email: amantialevanaj@gmail.com
DOI:10.5901/mjss.2014.v5n19p93
Abstract
This paper focuses primarily on the treatment of the indictment and its constituent components, considering it as a tool for
the protection and realization of individual rights. Indictment Institute discloses an even more special interest. Indictment
Institute discloses an even more special interest on various studies and treatments. In specific periods in the development of
society, starting from the Roman period, in which it originated and then followed by the period Ottoman, in which this institute
was obviously improving to the present days , analyzing the issues of the concept of the claim, its types, interest to act in
judgment, filing a petition as well as its constituent elements . Through this paper I clearly highlight that the indictment institute
is considered as a one of the oldest institutions in the development of society. The focus of any democratic state is precisely
the protection of human rights and fundamental freedoms, whether pecuniary or non-pecuniary and exactly for this reason
serves the investment of the courts, through the institution of the indictment to seek the protection of these rights in case of
their breach.The civil lawsuit along with its constituent elements is a legal institution which ensures the protection of individual
rights of persons from any violation or violations that may occur as a result of the actions of third parties. The study includes
treatment of legal doctrine, classifying the claim in terms of procedural and substantive concept. In material terms, the claim
implies that kind of legal power that a person has to seek the realization of a civil right against another person regardless or
against his will, while the procedural concept has the legal power to invest the court for recognition or restoration of a right
denied or violated by another person, ie civil lawsuit on procedural sense is a means of protection of a right through the court.
Keywords: Lawsuit, procedural capacity, claim petition, the parties, the legal doctrine.
INTRODUCTION
Protection of human rights and fundamental freedoms, which includes those with pecuniary and non- pecuniary character,
continues to be one of the main focuses of any democratic state. Various historical records attest to the protection of these
rights since the time of primitive societies regardless of their organizational form.
In different historical periods lawsuit is labeled as a mean for the protection and realization of subjective rights. For this
reason, this institute is always interesting for further studies and treatments. On this topic I intend to treat also procedural
protective means of the respondent, to provide the meaning of a civil judicial process, on one side of which lies the petitioner
with his requests, and on the other side of lies the respondent with his objections against petitioner. For the purpose of this
topic, the structure of the paper contains four chapters starting with a historical overview of the lawsuit wherein the lawsuit
is treated since the Roman period in which there is its origins, followed later by the Ottoman period where institutes of
lawsuit, where the institute of the lawsuit by the course of time was being improved since the time it was created and by
completing this historical overview with the current state of nowadays about this institute followed by the meaning and types
of lawsuit, the elements of the lawsuit, interest in acting to judgment, contents of filing a lawsuit, the procedural means of
protecting the respondent, impeachments and counterclaim.
1. HISTORICAL OVERVIEW ON INDICTMENT INSTITUTE
The lawsuit is one of the oldest institutes and one of the main tools for the protection and restoration of the subjective right.
"Among primitive peoples, the disputes were resolved through the use of violence. Later, during a second phase, the
magical-religious beliefs impose a forced submission to the rites and ceremonies in duels or in the judgments of the Lord.
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These rites of disputes character controlled by priests presented the will of gods in favor of him who had performed these
rites in the most perfect way.“. 1
0F
In subsequent periods, the disagreement began to be resolved through vigilantism. Subsequently, the use of violence
began to be limited due to a decree issued by Marcus Aurelius. "This decree ruled that creditors should always be
addressed to the judges for their claims against debtors" because if they intervene on the property of debtors, without the
permission of anyone, lose their their right to credit”. 2
1F
In the post-classical law was necessary to address at legal bodies for recognition or sanctioning rights.
Recognition or sanctioning rights was required by the legal bodies through action, or otherwise claimant. In the Roman law,
"Celsus has given this definition," the lawsuit is nothing else than the right to legally ask what someone owes you. ""Since
that time, the lawsuit is considered as a plaintiff's legal action in order to ensure a favorable final decision for him". 3
2F
The right to lawsuit was closely associated with interest, because just having an interest; they can set in motion a certain
process.
" The active legitimacy consisted in the right availability of filing suit in your favor, while the passive one, on being sued as
a result of creating concerns in the exercise of real rights or due to failure to meet the obligations.” 4
3F
To present petition before the magistrate, to summon at the trial also the person against whom the petition
addressed to the defendant. In the process, the magistrate may accept the lawsuit or to reject it.
“When the plaintiff and the defendant were presented to the magistrate, the plaintiff with words or solemn gestures had to
submit the lawsuit to the defendant. The defendant may hold different attitudes against it, could accept, could meet with
his request, could be silent, could be defended in vanity, even could deny by solemn gestures” 5
4F
Act wherein reflected the content of the objection of the defendant when was sent for trial to the judge called litis
contestation.
II. MEANING OF LAWSUIT AND INTERPRETATION OF ITS TYPES.
The civil lawsuit is a legal institution that ensures the protection of subjective individual rights of persons from any violation
or infringement that may be caused as a result of the actions of third parties. Infringement or violation of the rights of
individuals can be performed by private individuals as well as entities of public law and therefore any person affected may
exercise the right to sue not only against private individuals but also against democratic and against public persons such
as institutions state. The right to address the court by means of a civil lawsuit, is guaranteed also by Article 42 of the
Constitution of the Republic of Albania which provides that "any person who alleges that a right has been violated, has the
legitimate right to a fair trial and public hearing within a reasonable time by an independent and neutral court appointed by
law. ". The courts have a duty to protect against any violation of the legitimate rights and interests of individuals. Protection
on civil rights and interest made by the trial or civil proceeding which is propelled by means of a civil lawsuit.
According to Italian Doctrine, "the lawsuit is legal opportunity to put in place the criteria for law enforcement, and
every right as possible, is a ideal typical power, so is the opportunity to have legal effects specified (law enforcement)"
"There are still authors who continue to support the thesis that the lawsuit is a subjective right independent of the right
material which seeks to gain recognition or sentence. Besides the material right would have also a procedural subjective
right which seeks to recognize and respect the right ". 6
5F
Such a thesis faces many difficulties, but we can say that "the lawsuit is a possibility, a legal power allowing public
institutions and individuals to invest the court to reach the observance of the law. To address the court has an impersonal
and objective and permanent character, by which a person can not give up in general and absolutely, except in special
1Roman Law.Arta Mandro, p.450.
2 Ibid.
3 Ibid.
4 Ibid.
5 Ibid.
6Civil Procedure 24 iem edition.Jean Vincent Serge Guinchard,p.75
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cases as may be waiver from a special lawsuit. This legal power is regulated by law in an abstract way. It is attributable to
any person.”. 1
6F
“The subjective material right aims prestim from the opposing side, while the lawsuit aims to set in motion the court.
The second difference lies in the fact that the subjective right material is addressed to opposing party as can be as private
and public character 2, while the lawsuit invests the judicial bodies, asking them a legal protection of its rights, so it is of
public character.”. 3
7F
8F
The lawsuit in material terms has many interpretations, some of which are presented below in order to emphasize its true
meaning. "Civil lawsuit in material terms is the legal faculty or power of a person to seek the realization of a civil right against
another person, regardless or against his will.”18. “Through the lawsuit, the party seeks to realize its own right of the
material right against the opposing party or clarifies its legal relations with.” 4
9F
The right to lawsuit in material terms is itself subjective right. This subjective right, the person asks to achieve through
coercive force of the state, namely through the court.
“The lawsuit in material terms is claiming a right to the material against the defendant by the plaintiff by the court. In material
terms lawsuit is the right protected by the court. "Through lawsuit he expects the court to ensure recognition and
reinstatement of his right to prejudice the defendant.
Code of Civil Procedure defines the lawsuit in its Article 31 which provides that "The lawsuit is the right of the person who
makes the claim, to be heard on the merits of this claim, in order the court to announce based or not."
A approximate definition by section 31 of the Code of Civil Procedure makes the Civil Procedure Code of Italy, when
it provides that "Anyone who seeks a right in court, must submit a lawsuit to competent court” 5. A definition more or less
similar to the Albanian legislation provides the French Civil Procedure Code which stipulated that "the lawsuit is the right to
the applicant of a claim, to be heard on the merits of this claim in order the court to announce based or not” 6.
10F
1F
The difference between the lawsuit, the substantive and procedural meaning is that the lawsuit may be declared
admissible by the court in procedural terms but can be declared inadmissible in material terms. Article 112 of Civil Code
provides that if the plaintiff did not exercise the right to lawsuit within the time allowed by law, then he can not carry on this
right by means of coercive force of the state. 7
12F
From the provisions cited above, it comes to the lawsuit in its material sense, which gives the right the subject that
has a right to address to state, which through its coercive force to accomplish his right, but entity has the obligation and the
right to petition for the implementation of its subjective right to seek within the time prescribed by law, otherwise his right
over the limit can not be achieved through the coercive force.
“The lawsuit on procedural sense is the faculty or legal power to ask the court for recognition or restoration of a right
denied or violated by another person, which calls regularly before the courts, ie. civil lawsuit in procedural terms is a means
of protection right through court”. 8
13F
Doctrine is defined in the procedural sense lawsuit as "a remedy by which interested persons and those authorized by the
law of the court with a request for review and resolution of civil legal disputes and civil rights protection”. 9
14F
“The lawsuit in the procedural sense is the act by which the plaintiff submits his claims against the defendant”. 10
15F
To exercise the right to lawsuit in the procedural sense certain conditions should be met objective and subjective
character.
Civil Procedure 24 iem edition.Jean Vincent Serge Guinchard,p.76
If the right is addressed against individual or state.
3Manuale di diritto processuale civile Enrico Tullio Liebman,fq .140.
4Civil Procedure of the People's Republic of Albania.Alqiviadh Lamani Tirana 1962.p.101
5Compared overview of Civil Procedure.. A.Simoni, S.Sadushi,S.Como Tirana 2006. p.111
6Codice di Procedure Civile Italiano.article 99
7Article 112 of the Civil Code of 1994 provides that "The right of lawsuit which is not filed within the period prescribed by law, can not be
extinguished and carried on by the court or other competent authority
8Civil Procedure of the People's Republic of Albania..Alqiviadh Lamani Tirana 1962 p.101.
9Civil Procedure Law of of the People's Republic of Albania . Stavri Ceco,Ylbere Malindi,Safet Hasani, p 158
10Code of Civil Procedure of the People's Republic of Albania, year 1958. article 45
1
2
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Subjective condition is that the person who presented himself to the court and file a petition with the person whose name
is submitted the petition to have the legal capacity, because just having eligible persons can enter into legal relations
between them. 1 “The objective terms of filing suit, are divided into positive conditions and negative conditions of exercise
of the lawsuit.” 2
16F
17F
Positive conditions that should complement a lawsuit are:
Lawsuit should be filed in the court where the appeal is subject to suit, enters the court jurisdiction. Code of Civil Procedure
provides that: "In court jurisdiction includes all civil disputes and other disputes in the codes provided in special laws.”. 3
18F
2. Lawsuit which can not be accepted for review for the reason that does not enter under the jurisdiction of the court
are those which enter the administrative jurisdiction in the jurisdiction of the arbitral tribunal only on condition that the
arbitration agreement to be valid. The claim must be presented in temporal and subject matter jurisdiction of the court,
namely "specific court before which the action is filed should be competent to try the case” 4
19F
3. The lawsuit that will not appear in court to be tried first, and not be given a final decision between these same
parties, for tënjëjtin and legal reasons for the same object. 5
20F
4. A lawsuit is not accepted to examine whether a lawsuit with a similar object between those same parties and the
same legal cause is pending trial 6“Subjective and objective conditions for exercising the right to sue procedural in nature,
ie not related to the plaintiff's subjective right material for the right to petition the court in the above manner is just the
requirement that it be accepted by the court for consideration and appropriate decision to be given.”. 7
21F
2F
Terms of acceptance of the claim, as they οφ subjective character and objective character are procedural requirements
that must be met to review the lawsuit.
Procedural requirements can be absolute and relative. Absolute requirements are those procedural requirements that must
be met in order to continue the normal process. Relative requirements are those procedural requirements which although
may not be available in lawsuit again claim review process can continue to normality.. 8
23F
Code of Civil Procedure does not divide the procedural requirements in absolute and relative.
However such a division between those requirements is meant to analyzing claims court can be largely taken on board
and request that the court take into consideration only at the request of the parties. Thus the capacity to be party to the
proceedings, the jurisdiction of the court, the jurisdiction of the court, be taken into consideration by the court and as such
are considered as absolute procedural requirements.
As the relative demand may mention forecast demand for the right to raise the claim, which the court assessed only on the
request of the respondent in the form of rebuttals and non Suo moto by the court.. 9
24F
CONSTITUENT COMPONENTS OF THE LAWSUIT
The elements contained in the lawsuit are listed as follows:
1. legal cause;
Civil Procedure (Lectures) Tirana 2003 Vitore Tusha and Flutura Tafaj p.25
Code of Civil Procedure dated 29.03.1996 art. 451/a “The decision that has become final is binding on the parties, for their heirs, for
those who give the right of the parties, the court which rendered the judgment and all courts and other institutions
3Article 58 of the Civil Procedure Code provides that "when in the same court or in different courts in the same time examine the dispute
between the same parties and the same cause and the same object, decided to dismiss the case of disputes submitted after that first
registered with .
4Civil Procedure Code, Tirana, article 36/1
5Comparative Overview on Civil Procedure. Tr 2006, A.Simoni,S.Sadushi,S.Como p.114
6 The Civil Procedure (lectures) Tirana 2003 Vitore Tusha and Flutura Tafaj p.25
7Code of Civil Procedure dated 29.03.1996 art. 451/a “The decision that has become final is binding on the parties, for their heirs, for
those who give the right of the parties, the court which rendered the judgment and all courts and other institutions.
8Article 58 of the Civil Procedure Code provides that "when in the same court or in different courts in the same time examine the dispute
between the same parties and the same cause and the same object, decided to dismiss the case of disputes submitted after that first
registered with
9Albanian Civil Procedure Law, Dispenca 1.Tirana 1974. P. 119.
1
2
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2. object.:
1. Entities (parties).
The legal cause of the lawsuit is the reason for the judicial request and is divided into two elements:
The first element of legal cause is the right. The right is the legal reference, is the legal basis as part of legal cause. Through
the law, the plaintiff shows that his request is based on material right and that right is protected by law. Plaintiff pursuant to
Section 154 of the Code of Civil Procedure, when presenting his petition to the court must bear right onto which the lawsuit
is relied. Because of different practices regards the concept of legal causation and the law. The Supreme Court has unified
judicial practices and the decision dated 09.03.2006 No. 9 stated that <Showing of the right on which the petition is relied
>, in terms of Article 154 of the Code of Civil Procedure, corresponds to subjective right of the plaintiff as part of the "cause
of the claim" within the meaning of Article 185 of the Code of Civil Procedure and the determination "of the legal basis of
the claim" within the meaning of Article 16/2 of the Code of Civil Procedure.
To achieve a correct conclusion, it is necessary to interpret Article 16 of the Code of Civil Procedure which states that "the
Court resolves the dispute in accordance with legal provisions and other applicable rates, which are required to be
implemented by it. It makes a precise setting of the facts and actions related to disputes, without regard to the determination
that the parties can make. However the court may not change the legal basis of the claim without the request of the parties."
Second element: legal cause is the fact situation against this right (causa petendi).
When the plaintiff asks the court to its final decision to restore his rights violated, must first prove that there is a state that
has delayed and violated his right. This state of fact plaintiff must prove with evidence. In Article 154 of the Code of Civil
Procedure has determined that the petition should contain narrative of facts, circumstances, documents and other
evidentiary materials.
Showing of facts and circumstances is an element that must contain a claim to be considered complete. "Presentation of
the facts is important because even contradictory debates will take place between the parties about these facts and legal
consequences and ultimately will be these facts object of the trial judge”. 1
25F
The petition must be individualized, the individualization of the claim is important and the fact that the same issue can not
be placed twice. According to the doctrine, there are two theories. "The first theory is that of individualism that defines the
individualization of the claim, suffice some factual data that remove any doubt about the right of the plaintiff. The second
theory is that of substanting which supports the idea that the claim should contain detail made all the factual information
from which derives the right of the plaintiff “. 2
26F
The subject matter of the lawsuit is what is required as a result of filing suit (pettitium), implementation of the law
and profit of what is required that comes from such law enforcement recognition of the right of ownership etc.. So with filing
the claim in court made known to the court the object of dispute.
Supreme Court by Unifying Decision No. 9 dated 09.03.2006 stated that " Determination of the lawsuit, the claim
in terms of section 154 of the Code of PR. The Civil corresponds to what is required to gain as a result of law enforcement,
in terms of defining the object of the claim, provided for in Article 185 of the Civil Procedure Code ".
When talking about the subject of the lawsuit will understand that what is required to achieve the object of the plaintiff and
not the material that is the object of the claim, provided as an element of its Code of Civil Procedure section 154. The object
of the claim specified in section 154 of the Code of Civil Procedure is a material object that the plaintiff seeks.
Supreme Court with its decision no.1288, dated 19.11.2001 argues that "Only fair determination of the legal
relationship to the conflict by determining the cause of the claim, the evidence of each party's obligations in relationships
and fulfillment of these obligations in reality and review of all rebuttals will enable fair resolution of the matter.”
Italian legislation is more flexible predicting that if the elements of the claim are not shown in the claim, but can be drawn
from the content of the claim, then the claim is deemed complete. Italian legislation provides the term "invalidity" when the
claim is not criterions elements provided for in Article 163 of the Code of Civil Procedure. It remains without action until
these flaws are met. Has the same prediction French procedural law.
1
2
Civil Procedure of the People's Republic of Albania. .Alqiviadh Lamani Tirana 1962 p.118
Ibid.
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There can be thought of a lawsuit without a subject that raises before the court and without a subject against which the
claim arises. It is the subject, who by his wishes to exercise his right to sue in court and obtain a right that he thinks belongs.
No subject had not induction of court motion.
In Article 90 of the Code of Civil Procedure stipulates that: "Parties to a civil trial are natural or legal persons, on behalf of
or against whom judgment". So by this definition we conclude that both parties in a civil process: one party is a natural
person or legal entity that requires the court to restore the law that is being violated, and the other party is a natural or legal
person against whom judgment by convened to discuss the trial and to raise objections on the merits and the merits of the
claim of the plaintiff law.. 1
27F
Subject to the terms of the right to file suit in court or prosecutor called active subject and the subject to which the petition
is directed called ignorant or passive subject. The plaintiff and defendant are called differently litigants.
Litispendence provided New Code of Civil Procedure section 161 under which "actions may be taken jointly by the many
plaintiffs or against many defendants if:
a) Have common rights and obligations on the subject of the claim;
b) The rights and obligations in terms of fact or of law have the same basis. "
In the case where a plaintiff and a defendant in the case as well as the bashkëndërgjyqësisë to be a party to a civil
procedural legal relationship must: have a party procedural legal capacity and procedural capacity to act.
That a person has the right to benefit from the protection offered by the state authorities for the realization of a right
that is violated, the individual must have an interest in protecting this right.
Article 32 of the Civil Procedure Code provides for cases when a person may be sued. In the first paragraph of this
article reads as follows:
Lawsuit may be filed:
*To seek the restoration of a right or legitimate interest is violated;
Plaintiff to be legally justified for asking and recognition of a right as well as for the restoration of a right and for the
restoration of a right infringed or denied must be the person that according the law was violated or denied this right (active
legitimacy).
The plaintiff’s interest as well as the defendant should be. :
Legitimate and lawful interest
Legitimate interest has to do with the fact that the plaintiff may exercise the right to sue only when it is infringing, denied or
violated a right that has been infringed, denied or violated a right that he is recognized by law. This is exactly provided in
the first paragraph of Article 32 of the Code of Civil Procedure.
Legal interest:
Legal interest can be moral and pecuniary. In the current civil procedural legislation does not exist a provision to determine
whether the right can be exercised lawsuit when the plaintiff the value of request is very small. Well enough to have an
interest, however small it be, and the person can legally exercise claim..
Direct and personal interest:
Only the one person who is deprived of, infringed and violated the right has the right to sue for its restoration. Nobody can
petition the court to attaining respect and protect the rights of someone else.
Since the legitimate claim as entirely legitimate components must meet the above mentioned investment at the time of the
court..
CONCLUSION
At the conclusion of this paper would like to draw your attention once again to the most its important moments.
1
Neni 154 I K.Pr.Civile “Kërkesëpadia duhet të përmbajë përcaktimin e objektit të kërkespadi
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The lawsuit is one of the oldest institutions of civil procedural law and one of the main means for restoration of the
subjective right. Lawsuit in legal doctrine is treated in both material and procedural terms, civil lawsuit in material terms is
the faculty or legal powers of a person to seek the realization of a civil right against another person , regardless of if it is
against the will of his own, while in the procedural terms is the faculty or legal power to ask the court for recognition or
restoration of a right denied or infringed by a another person , who is regularly called before the courts , ie civil lawsuit in
the procedural terms is a mean of protecting the right through the court. The lawsuit consists of three elements which are
the subject matter, the legal cause and parties.
The lawsuit during the trial may change as the subject of legal cause, but it can not change the two elements simultaneously.
Besides the theoretical treatment of the lawsuit and its elements judicial jurisprudence of the Supreme Court provides
answers to many discussions that exist for the lawsuit in general and in particular its elements. The lawsuit as a procedural
remedy, to propel the court for review of a lawsuit should contain the elements set forth in section 154 of the Code of Civil
Procedure otherwise, the lawsuit will be returned from the court for deficiency. It is important to note that the court should
be careful when analyzing a lawsuit, if it meets all the elements. Court should analyze in detail if these elements are met.
The Court finds that even when one of these elements is not fully defined, but that can be drawn from the content of the
lawsuit, shall not reverse the lawsuit for deficiency. Civil Procedure Code has explicitly defined the elements that seem to
contain a claim and the court may not enlarge the circle of those requirements. It is recommended that the court should be
careful when analyzing a lawsuit, should not extend the circle of those requirements established by law. So, for example it
should not reverse the lawsuit for default when it determines that litigation is not fairly regulated, because the litigation of
the parties is related to the interest of them in a trial which is due to acceptance or to reject the lawsuit and not to reverse
the lawsuit.
For this reason it is recommended that adjustments be made to the above being explicitly defined that how much would be
a lawsuit tax for all objects of lawsuits.
It is recommended that in the future the lawmaker to regulate by law the issue of whether during the trial in the Court of
Appeal, the respondent may file a new impeachment he had not filed during the trial in the Court of First Instance.
In conclusion I would like to emphasize the lawsuit as well as procedural protective means of the respondent are provided
to guarantee the rights of persons, protection of their subjective rights.
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